Why May v. Bonta is a big deal

The babblings of a not lawyer about just how good a weekend order from the Ninth Circuit was for The People.
(1500 words)

There is a name that should be familiar to us, but which is not, Federal Judge Jack Weinstein. He sat on the Eastern District of New York district court from 1967 until 2020.

Why is he important? He was the federal judge that oversaw a number of mass tort cases. The one of interest to us, in the Second Amendment community, is the cases involving Diethylstilbestrol, or DES.

DES was prescribed to pregnant woman to reduce the risk of complications from 1940 through the early 1970s.

It turned out that it caused significant medical complications.

Of course, being America, once it was determined that there was an injury and that somebody might be at fault, lawsuits were filed.

But here is the thing, every pharmaceutical company made DES. Each of the pills was the same. It was almost impossible to tell the manufacture of a DES pill.

More than that, most people just don’t know. When I look at my medication bottles, there is no indication of who manufactured that particular lot of pills. I can go to my pharmacist and find out. On the other hand, I would have a difficult time finding out who manufactured the pills I took when I lived in Maryland. I’m not even sure what pharmacy I used, at that time.

This is where Judge Weinstein comes in. His name was pulled as the judge to hear the first suit filed in the eastern district of New York. From the start, it looked like he was sympathetic to the plaintiffs, the people suing. More suits were opened in the Eastern District.

Instead of a judge being drawn at random, the plaintiffs would request that their case be handled by Judge Weinstein. For judicial expectancy, these requests were granted. This is normally a good thing. This is what happened in California when Judge Benitez was the judge to hear so many Second Amendment challenges.

The defendants stood up in court and said, “Hey, it wasn’t me, and they can’t prove it was me. Dismiss me from the suit.”.

This is because no plaintiff could point to any particular defendant and prove that the defendant in question was the company that manufactured the pills that the defendant took. Since there was no way of figuring out which defendant was responsible for which plaintiff, it looked like the cases would be dismissed.

Judge Weinstein reviewed this and came up with a plan. His plan was a type of joint responsibility. He reasoned that for any particular year, each defendant held a particular market share. Company A held 50%, company B held 25%, company C held 15%, and D, E, and F held the remaining 10%. His ruling was that each company was responsible for a portion of the fine based on their market share.

Thus, for every $100 award, company A paid $50, company B paid $25 and so on.

But how did this intersect with the Second Amendment?

It turns out that Judge Weinstein was a rabid anti-gun person. There wasn’t a thing about guns he approved of, unless it was protecting his sorry arse.

The anti-gunners were not winning in the courts in ways to completely ban guns, but they reasoned that they could “get rid of guns” if there were no more sellers or manufacturers of guns. To this end, they started suing gun manufacturers and sellers.

And they filed in the Eastern District of New York. And they requested that the cases be assigned to Judge Weinstein because these gun suits were just like the lawsuits filed in the DES cases. Judge Weinstein gleefully accepted these cases.

Even if the defendants (good guys), won the suits, the costs of litigation were so high it drove smaller companies out of business.

This ended with Congress passing several bills to stop it, the current version is the PLCAA.


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The Cascade of Opinions

A quick update regarding some 2A cases kicking around. Touching on how bad case law begets bad case law.
(1200 words)

In June 2022, the Supreme Court issued the Bruen opinion. This case answered one question: Is New York’s “proper cause” requirement for a CCW constitutional?

The Supreme Court answered with a resounding “NO!”.

In dealing with the question, they stated that subjective criteria was not acceptable. They went on to explain how they reached their opinion using text, history, and tradition. In the associated dicta, they told the Article III inferior courts how they should analyze any Second Amendment challenges.

It is important to understand that the Supreme Court gives explicit answers regarding the question they are answering and instructions on how the inferior courts can do it themselves.

When an inferior court says that the Supreme Court hasn’t issued an opinion on something, that is the court being cowardly, ignorant, or attempting to subvert The Constitution.

If the plaintiffs make a Second Amendment challenge, they are responsible for proving that the proposed conduct implicates the plain text of the Second Amendment.

To take just one example, a 16-year-old wishes to purchase a firearm. They are refused because they are underage.

The text of the Second Amendment reads; A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The state might argue that 16 year-olds are not part of the people for reasons. But this is not the first step.

The plaintiffs wish to purchase a firearm. All firearms are arms. Thus, the “Arms” requirement is met. They wish to purchase, possess arms. This satisfies “to keep and bear arms”.

They are a part of “the people”. That means the plain text of the Second Amendment is implicated.

If the state starts arguing that they are not part of the people protected by the Second Amendment, that is part of the second step: history and tradition.

Anytime the state is arguing that something is not an arm, or it is not being kept, or it isn’t bearing, or they are not part of the people, they are attempting to subvert the clear intentions of the Supreme Court.

Once the plaintiffs have proved that the proposed conduct implicates the plain text of the Second Amendment, the burden shifts to the state. The plaintiffs are done.

In that second stage, the plaintiffs can argue why particular regulations are not analogous, or not of the correct period. That is their job, to eliminate the regulations presented by the state from being considered.

Everything else the state brings up can be challenged as being irrelevant. If an expert is giving an opinion on legal matters, that is inappropriate. The legal experts are the attorneys and the Court, experts give opinions about non-legal issues.

The First Domino

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As Applied?

What is the difference between an as applied challenge and a facial challenge to law?
(1550 words)

In Antonyuk v Hochul, the plaintiffs challenged parts of New York’s CCIA on facial grounds. This is to say, they claimed that the challenged legislation is always unconstitutional.

For example, it has been established that a ban on all handguns is unconstitutional. There is no case in which it would be considered constitutional. The state argues around the fringes, if a ban on all handguns is unconstitutional, how about a ban on some guns?

Consider a different civil right, a right protected by the constitution, the right to assemble for free speech.

In my town we have a commons. It has a pretty gazebo and during the summer months they will have open air concerts and art festivals and discussions and all sort of assemblies. If I want to show up and start playing my fiddle (badly) at the gazebo, there is no issue.

On the other hand, if I would like to have an ‘event’, I need a permit.

The first question asked is, “Does this touch fingers with a core civil right?” The answer to that is an unequivocal “YES”.

Since the proposed conduct, having an event on the public commons, implicates the plain text of the First Amendment, it meets the first prong of a facial challenge.

Permitting is well established, so only a lawyer interested in fleecing me would take the case, but assume it got into court.
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Judge Ho Submits his Opinion in Rahimi

Circuit Judge Ho of the Fifth Circuit writes a letter to the Supreme Court explaining what they did in Rahimi and why the Fifth Circuit’s opinion should stand.
(1600 words)

When I read some arguments made by the state, I want to scream about how bad those arguments actually are. The more I read and understand, the more I would like to learn how to write and submit my own amicus curia briefs. The problem is that I would need a lawyer to submit them through.

Besides all of us poor regular people, there is another group of people that are not allowed to submit briefs to the superior courts. That is the judges themselves.

Judge Benitez doesn’t get to submit a brief to the Ninth Circuit rebutting what the state said in Duncan. He is limited to what he wrote in his final judgement. He has developed a robust history in Duncan, but he doesn’t get to point out what parts of that history are important.

Circuit Judge James C. Ho sits on the Fifth Circuit court of appeals. He is part of the group that decided a number of the Second Amendment cases that have been through the Fifth Circuit. That includes the Rahimi case.

On Friday, the 17th of November, the Fifth Circuit court issued their opinion in US v. Kersee, a case that has nothing to do with the Second Amendment. Kersee is a case involving domestic violence allegations.

Case History

Starting from the beginning, Mr. Kersee is a strong candidate for the J. Kb.’s pedophile rehabilitation program. He pled guilty to one count of unlawfully transporting a minor over state lines with intent to engage in sexual activity. He was sentenced to 10 years in prison and 5 years of supervised release.
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He’s too Dangerous to Have a Gun

Legal Rant
Rambling about how to disarm “dangerous” people. Put them in prison.
(1800 words)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The unqualified command of the Second Amendment is “shall not be infringed”. This applies to all The People.

As a society, we want our family, friends, and community to be “safe”. To that end, we create protections.

The primary protection is a threat of state violence on those that would harm others.

When the cops show up and arrest somebody, they are inflicting violence on that person in the name of the state. When that person is remanded for a custodial sentence, there is state inflicted violence in that as well.

The state wishes to maintain a monopoly on violence.

The right to self-defense is in direct opposition to that monopoly. Self-defense is not limited to self vs. another person or other people, it also includes the right to defend yourself from the state.

The Second Amendment protects our right to armed self-defense. Since it protects an aspect of self-defense, it is in direct opposition to the state’s goal of a monopoly on violence.

Unfortunately for the state, their goal of a monopoly on violence is a threat to our safety. How? Because the state cannot proactively keep us safe. They can only reactively respond. Often long after the harm has been done.

If there is a credible threat to you or your family, the state will not provide you with protection. At the most, they might send a squad pass your home slightly more frequently than normal. This is not real protection. It is barely a deterrent.

Since the state cannot protect you and yours, they offer to predict who is most likely to be a threat to (the state) you, or (the state) your family, or (the state) your community.

Predictive actions by the government are facially unconstitutional. You have a presumption of innocents. You must be found guilty in a court of law beyond reasonable doubt. Only after you have been found guilty can the state punish you.

Remember, you have rights and powers. The state has powers and authority. The state has the power to break down your door, search your home and person, detain you and punish you. They only have limited authority to exercise that power.

You have your rights, you might not have the power to defend your rights against a more powerful (the state) foe.

When the state uses its power to strip you of your rights, they are causing irreparable harm. They are only authorized to do so after a finding of guilt.

What happens when the state is aware that a group of people are too dangerous to be armed? How do they disarm those people?

According to congress, there are 9 reasons a person can be disarmed because they are too dangerous to possess firearms.

The law does not disarm those people. It only orders them to not possess firearms. A very different thing, indeed.

From this data, we can see that about 33% of all homicides of family members are done without a firearm. If the purpose of §922(g)(8) was to protect potential victims by predicting that a family member was dangerous, then it would apply to all arms. Not just firearms.

The state has argued, unendingly, that there are protections in place for those accused of potential domestic violence. That a court will only issue a TRO that triggers §922(g)(8) after due process.

Let’s see, the accused has to “receive actual notice”. Does that mean a certified letter? A process server? Or does it mean first class mail?

When I was divorcing my first wife, it was not pretty. On the weekend of my birthday, I went to pick up my children at her home. She did not answer the door. She refused to come out.

Of course, it is past closing time at the courts, there is nothing the courts can do. Finally, she came down. I took a few steps back, away from her, stuck my hands in my pockets to stop from making unintentional gestures that might be interpreted as threatening.

I left without my children. I left without touching her. I stopped at a phone to call my lawyer and report what had happened. My estranged wife went to the cops and filed a complaint. She didn’t bother to tell them that we had lawyers. She didn’t bother to inform them that we were in the process of getting a divorce.

She wrote my address so badly that when the court issued a summons to appear, they sent it to the wrong county.

According to the court system, I should have known about the summons because they sent it by first class mail.

They didn’t have any problems finding me when the court issued a warrant for my arrest for failure to appear. For that, they contacted the DMV and asked them for my address. Simple.

When the state says that the TRO only counts if the accused “received actual notice”, I do not trust that those words mean the same thing we think it mean.

The state offers another requirement, that the accused has an opportunity to participate in the hearing. If the accused actually gets the notification, and if the accused has enough warning to get to the hearing, and the accused has the means to get to the hearing, and the accused can get time off to attend, they can attend.

There is nothing in the law that requires the hearing be held where the accused can get to it.

Going back to my estranged wife, the court where the case was being heard was in a different county. It required me to drive for an hour, each way, to attend. Those hearings are always during the workday. They are not tightly scheduled, so you have to take a day off to attend.

There is no public defender for the accused. They have to bring their own paid for lawyer or represent themselves. The person filing for the TRO has a great deal of state provided support. Search for how to file for a Domestic Violence TRO and you will find multiple results for help in filing.

So now we get to the second part of the clause, “includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or”. That sounds pretty good. That means the court would have to have evidence that there was a real threat.

What, that ended with an “or”. That means there is another way for clause B to be satisfied.

“by its terms explicitly prohibits the use, attempted use, or threatened use of physical force”. What does that mean? It means that if the TRO says, “don’t hit your wife” it satisfies clause B.

So to restate the requirements for a TRO that triggers §922(g)(8) the accused has to be sent notification of the hearing, they have to have permission to attend the hearing, and the TRO has to have language in it forbidding physical force or threats against the purported victim.

A predictive finding from the legislature in §922(g)(8) is not constitutional, on its face.

What about other predictive findings of the legislature, you know, future crimes?

The state feels that the potential for punishment of custodial detention exceeding a year is enough to trigger §922(g)(1).

It does not require a finding of guilt for §922(g)(1) to attach, just an indictment. President Trump is currently a prohibited person because he has been indicted on charges that could exceed more than a year of imprisonment.

The state has not been able to point to any regulations from the founding error of disarming people how were not dangerous.

Is there any real likelihood of President Trump going out and shooting somebody? Not really. He is not “dangerous” in that way.

The state then turns to a definition game. Rather than prove that a person is dangerous via objective standards, they use legislative predictions. That being if the punishment would be for more than one year.

That is not a finding of dangerous. There are thousands of regulations that can get you sent to prison for a term of greater than a year. Few of those are actually indicators of “dangerous”.

The standard example being Martha Stewart. She is not “dangerous”, she is a prohibited person.

This makes §922(g)(1) facially unconstitutional.

How about those people who were convicted of acts of violence? Should they be disarmed?

They are disarmed, for the duration of their imprisonment. There is a finding of dangerous in these cases, in that the crime they were convicted of was a violent crime.

What about when they are released from prison? Should their rights be reinstated?

This is the more difficult question, in my opinion. So I push the issue slightly. When a person is sentenced according to the sentencing guidelines, they are being punished according to those guidelines.

If the sentence is for 70 months, and they are released after 62 months, they still have another 8 months of punishment. At the end of the full 70 months, their rights are restored.

But we know there is a high rate of recidivism. The more so when violence was part of the original crime.

If there is such a high probability of recidivism, then your punishment isn’t working! Fix it!

The rapist that has destroyed the lives of 10 women is sentences to 60 months. He gets out and 4 years. He rapes another couple of women before he is captured and put away again.

Why was he let out after only 4 years? Why wasn’t he kept longer?

I was watching a TV show. One of the characters tells her parole mentor that she hasn’t had anything to drink in 18 months. The mentor points out that it is a meaningless statement because she’s locked up where there is not supposed to be any alcohol.

There is no way to predict behaviors based on the behaviors when a person is under observation.

Florida has a 10-20-life regulation. My understanding is that these are enhancements based on the use of a firearm in a crime. Their answer is, “don’t do the crime if you can’t do the time.” Those are 10, 20, and life enhancements for using a firearm during certain crimes.

Punishment must deter people from doing the crime. It must not chill the exercise of our rights.

of The People Shall Not Be Infringed!

Legal State Arguments
A look at how the state is attempting to restrict our rights by redefining what “The People” means.

(2450 words)

Heller was the first domino to fall in the restoration of our Second Amendment protected rights. McDonald was the next. After a long time, we had the third domino fall, Bruen.

After Heller there was a rash of cases that were filed. As these cases made their way up the court system, the infringing, rogue, courts profoundly erred in how they interpreted Heller.

They looked at the methodological processes that were used to decide cases in court. Two different methodologies were examined, and then adopted. The first was how the Supreme Court had addressed First Amendment cases.

They determined that the rights protected under the First Amendment were not absolute. There were exceptions. To determine if a regulation is constitutional, the regulation is evaluated using “strict scrutiny”.

Under strict scrutiny, the state must show that there is a compelling state interest, that the regulation is narrowly tailored and is the least restrictive means available to the state. Strict scrutiny only applied to content-based or viewpoint-based regulations. If the regulation was not abridging content or viewpoint speech, then intermediate scrutiny was applied.

This also matched the ways and reasons injunctions/stays were issued, likelihood of success on the merits, irreparable harm, balance of equities, and public interest.

Given these two methodologies, the inferior rogue courts adopted a means-end methodology for Second Amendment rights. First, the court would determine that the regulation did not infringe the core right of self-defense too much, just like they determined content or viewpoint-based speech. The courts then looked at the state interest.

If the state interest was “compelling”, the court would use strict scrutiny. If the state interest was not compelling, the court would use intermediate scrutiny.

Having decided on the level of scrutiny, the rogue courts would assume without finding that the regulation being challenged was facially unconstitutional, and then rule it constitutional because the state had shown significant interest to justify the regulation under the level of scrutiny used.

This stopped progress in Second Amendment challenges. Just as the previous profoundly erroneous evaluation of the Second Amendment only applying to the militia.
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Nuanced Approach

Why do the states want a more “Nuanced Approach” and what does that actually mean?
(1400 words)

While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”).
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 2132 (U.S. 2022)

This is what the state is looking for, a more nuanced approach. This is because there are two different sets of rules that must be followed, depending on “nuanced” or not.

Starting with Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.id. we start to see the state’s problem. The meaning of the Second Amendment is fixed according to those that ratified it. That means it is fixed as to its meaning in 1791.

The meaning of the 14th Amendment was fixed when it was ratified. Unless the people of 1868 thought that the ratification of the 14th included a reinterpretation of the 2nd, which cannot be proved, the meaning of the Second Amendment is fixed at 1791.

The state always starts with implicating unprecedented societal concerns or dramatic technological changesid.. This shifts the burden to the plaintiffs (good guys) to argue against the state’s claim. The state claims that “mass murders” are an unprecedented societal concern, except that mass murders have been happening for eons.
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